Com. v. Dowdy, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JAMIEL DOWDY
Appellant No. 673 EDA 2019
Appeal from the Judgment of Sentence entered September 6, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002031-2014
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 11, 2020
Appellant, Jamiel Dowdy, appeals from the judgment of sentence
imposed on September 6, 2018 following his convictions of sexual assault,
terroristic threats, and indecent assault.1 Appellant argues the trial court
erred by admitting prior acts evidence and contends the verdict was against
the weight of the evidence. Upon review, we affirm.
The trial court provided the following factual background:
On January 1, 2014 around 2:00 A.M. Complainant and her
boyfriend left a New Year’s Eve party after they had a verbal
altercation. Their argument escalated into physical violence upon
their return home, and ultimately, Complainant was kicked out
into the street with no shoes or coat. The Complainant went
around the corner from her house, sat on a ramp, and was crying
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3124.1, 2706, and 3126, respectively.
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when she encountered Appellant who pulled up in a white van,
parked and inquired why she was upset. Appellant’s offer to take
the Complainant to the nearest police station was accepted and
she got into his vehicle. Instead, Appellant drove around the
neighborhood before parking at his residence.
At his residence Appellant said he needed to go inside to get a
phone charger. The Complainant did not want to go inside,
however, Appellant dragged her out of the car by her hair into the
residence, and up the stairs to a second floor bedroom where he
sexually assaulted her. Throughout the assault, the Appellant
kept control over the Complainant by holding her hair, forcibly
engaging her in oral and vaginal intercourse. The Complainant
begged the Appellant to use a condom to which he complied. He
did not ejaculate. When Appellant attempted anal intercourse, the
Complainant screamed and he stopped. The sexual assault was
accompanied by Appellant’s threats such as “You better do it or
else I’ll fuck you up, bitch. I will kill you.” When the Appellant
finished he apologized, ‘chuckled’ and stated, “I’m sorry, I
basically just raped you.” When Complainant first asked to leave,
Appellant responded, “Don’t make me turn into a asshole again.”
Eventually, the Complainant was returned to her neighborhood,
went to the home of her boyfriend’s cousin who lived across the
street, and reported the incident. The Complainant was taken to
the police Special Victims Unit, gave a statement to detectives,
and was given a sexual assault examination.
Trial Court Opinion, 7/18/19, at 2-3 (footnote and references to notes of
testimony omitted).
At the conclusion of Appellant’s bench trial, the trial judge announced
her verdict, finding Appellant guilty of sexual assault (a felony of the second
degree), terroristic threats, and indecent assault (both misdemeanors), but
not guilty of the remaining charges, which included first-degree felony charges
of kidnapping, rape, and intentional deviate sexual intercourse, as well as
other misdemeanor offenses. On September 6, 2018, the trial court
sentenced Appellant to a term of five to ten years in prison for sexual assault
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along with concurrent sentences of two to four years in prison for terroristic
threats and two years’ probation for indecent assault. Appellant filed a post-
sentence motion, which the trial court denied on January 31, 2019. This
appeal followed.2 Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant asks us to consider two issues in this appeal:
I. Did not the lower court err in admitting prior acts evidence
against [Appellant] where it was only relevant to show
[Appellant] acted in conformity with the prior act?
II. Were the verdicts so contrary to the weight of the evidence
as to shock one’s sense of justice and be based on pure
conjecture?
Appellant’s Brief at 2.
Appellant’s first issue stems from the trial court’s September 7, 2016
ruling following a hearing on the Commonwealth’s motion to permit other acts
evidence. The “other act” at issue was a rape that occurred under
circumstances similar to those involved in the instant case, leading to
Appellant’s conviction for that crime.
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2 To be timely, Appellant’s appeal had to be filed by Monday, March 4, 2019.
Because the trial court docket reflects a March 5, 2019 filing date, we issued
a rule to show cause why the appeal should not be dismissed as untimely.
Appellant filed a response, contending the appeal was timely filed on March 4,
and attached as proof a time-stamped copy of the notice reflecting filing on
March 4, 2019 at 4:23 p.m. We issued an order that discharged the rule and
referred the matter to this merits panel. In light of the March 4, 2019 time
stamp, we conclude the appeal was timely filed.
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When considering a challenge to an evidentiary ruling of the trial court,
“our standard of review is limited. A trial court’s decision will not be reversed
absent a clear abuse of discretion.” Commonwealth v. Conte, 198 A.3d
1169, 1180 (Pa. Super. 2018) (quoting Commonwealth v. Aikens, 990 A.2d
1181, 1184 (Pa. Super. 2010) (citations omitted)).
As our Supreme Court has explained:
Generally, evidence of prior bad acts or unrelated criminal activity
is inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2). In
determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative value
of such evidence against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citations
omitted).
At trial, the prosecutor read the following stipulation into the record:
Your Honor, there is a stipulation that [Appellant] has a prior
conviction for similar acts. On December 12, 1996, [Appellant]
saw the victim [R.P.P.][3] at a club around 2:30 in the morning.
She asked him if he could give her a ride home and he agreed.
[R.P.P.] got into the car with [Appellant and another person].
But instead of driving her home, [Appellant] drove[] her to his
house at 1737 Newkirk Street. He told [R.P.P.] he needed to get
permission from his cousin to use the car to go to New Jersey so
they all went into the house.
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3 Although the victim was identified by name in the stipulation, we see no
reason to name her here, just as the trial court did not identify the
Complainant by name in its opinion.
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Once inside, he told her that he wanted to have sex with her and
she said no. [Appellant] pulled out a gun and threatened her. He
then forced [R.P.P.] to perform oral sex on him and when he made
his intentions clear that he was going to vaginally rape her, she
begged him to use a condom, which he did.
Afterwards . . . they walked together for a few blocks before
[R.P.P] began screaming and [Appellant] ran. Police arrested
[Appellant] and after trial, he was convicted of rape, involuntary
deviate sexual intercourse, and related offenses[.]
Trial Court Opinion, 7/18/19, at 5 (quoting Notes of Testimony, Trial, 6/13/18,
at 128-29).
As the trial court explained:
There were shared similarities between the two cases, such as:
both victims were young African American females who
encountered Appellant in the early morning hours; the crimes
were committed in close proximity to each other; the Appellant
gave a ride to both victims; both victims were driven to Appellant’s
residence instead of their intended destinations; both victims were
forced to perform oral sex on Appellant; both victims begged
Appellant to use a condom to which he complied; both victims
were vaginally raped; and both victims were threatened.
Id. at 5 (citing Notes of Testimony, Hearing, 9/7/16, at 5-6).
The trial court concluded that “[t]he striking similarities established a
common scheme, plan or design and an absence of mistake or accident.” Id.
Similarly, in finding evidence of prior crimes admissible, our Supreme Court
in Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017), stated:
These similarities not only establish the required logical
connection between the prior assaults and the circumstances
surrounding the victim’s death, they also present a “virtual
signature” for purposes of proving common scheme, intent and
identity. They are not mere insignificant details of crimes of the
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same class, where there is nothing distinctive to separate them
from, for example, common street crimes.
Id. at 1128 (citing, inter alia, Commonwealth v. Weakley, 972 A.2d 1182,
1189 (Pa. Super. 2009) (sufficient commonality of factors between crimes
dispels notion they are merely coincidental and permits conclusion they are
so logically connected as to share a perpetrator)).
Again, as our Supreme Court recognized in Sherwood, Pa.R.Crim.P.
404(b)(2) provides that evidence of other crimes may be admissible to show,
inter alia, opportunity, intent, preparation or plan, if the probative value
outweighs the potential for unfair prejudice. Sherwood, 982 A.2d at 487.
Here, the similarities between Appellant’s earlier crime and the circumstances
of the present case likewise establish a logical connection between the
assaults and present a “virtual signature” for “proving common scheme, intent
and identity,” permitting a “conclusion they are so logically connected as to
share a perpetrator.” See Hicks, 156 A3d at 1128. The trial court weighed
the probative value against the prejudicial impact and concluded, “On balance,
the evidence was relevant, outweighed any prejudice, and was properly
admitted.” Trial Court Opinion, 7/18/19, at 5.
Based on our review of the evidence and relevant authorities, we find
no abuse of discretion in the trial court’s determination that evidence of
Appellant’s previous crime demonstrated a common scheme and that the
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probative value of that evidence outweighed the potential for unfair prejudice.
Appellant is not entitled to relief on his first issue.4
In his second issue, Appellant contends the verdicts were against the
weight of the evidence. Our Supreme Court has instructed:
In reviewing a trial court’s adjudication of a weight of the evidence
claim, “an appellate court determines whether the trial court
abused its discretion based upon review of the record; its role is
not to consider the underlying question in the first instance.”
Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 653
(2008). Thus, a weight of the evidence claim must be presented
to the trial court so that it may address it in the first instance.
Commonwealth v. Widmer, 547 Pa. 137, 689 A.2d 211, 212
(1997). See also Commonwealth v. Karkaria, 533 Pa. 412,
625 A.2d 1167, 1170 n. 3 (1993) (“An allegation that the verdict
is against the ‘weight’ of the evidence is a matter to be resolved
by the trial court.”).
Once a weight of the evidence claim has been presented to the
trial court, it then reviews the evidence adduced at trial and
determines whether “notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to give
them equal weight with all the facts is to deny justice.”
[Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055
(2013)]. A trial court should award a new trial if the verdict of the
fact finder “is so contrary to the evidence as to shock one’s sense
of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Id. Stated another
way, “[a] weight of the evidence claim concedes that the evidence
is sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor
of acquittal that a guilty verdict shocks one’s sense of justice.”
Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1067
(2013).
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4 The trial court also determined that the prior acts evidence issue was waived
in light of Appellant’s acceptance of the stipulation and failure to object to it.
However, the stipulation was agreed to between the parties based on the trial
court’s September 7, 2016 pre-trial ruling allowing the evidence. We do not
find the issue waived.
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In re J.B., 106 A.3d 76, 95 (Pa. 2014). Relief on a weight of the evidence
claim is available in an appellate court only if it can be said that the trial court
acted capriciously or palpably abused its discretion. In re M.B., 228 A.3d
555, 573 (Pa. Super. 2020) (citing Commonwealth, Dept of Gen. Servs. v.
U.S. Mineral Prods. Co., 956 A.2d 967, 973 (Pa. 2008)).
Here, the trial court considered the evidence presented at trial and
concluded:
The evidence presented by the Commonwealth was more than
sufficient to prove the Appellant guilty of the crimes charged.
Complainant’s testimony was credible and corroborated with other
evidence, such as the video evidence which corroborated her
account of the initial encounter with Appellant in the white van.
While the Commonwealth’s case was devoid of incriminating
physical evidence, as the DNA results did not implicate the
Appellant who was wearing a condom and did not ejaculate, the
Complainant’s testimony was detailed and believable beyond a
reasonable doubt.
The Complainant’s credible account set forth the reasons why she
was out in the cold during the early morning hours of January 1,
2014, barefoot and dressed only in a sweater and pants.
Appellant’s sexual assault was vividly explained, step by step,
from being forced out of the van, up the stairs into a bedroom
where the Complainant was positioned for oral, vaginal, and
unconsummated anal sex. The Complainant described: the fear
she felt because of Appellant’s threats; how she threw up as
Appellant forced her with threats to keep performing oral sex; how
she screamed when Appellant tried to penetrate her anally; and,
how ultimately she complied with Appellant’s demands so she “can
make this out alive, out of this situation alive.” The Complainant’s
ordeal was punctuated at its conclusion when Appellant with a
‘chuckle’ admitted to her “I felt like I just raped you.”
At trial, Appellant presented evidence that was unconvincing
and/or of little evidentiary value. The testimony of Appellant’s
friends, Adams and Wagstaff, to the effect that they had seen the
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Complainant in Appellant’s van prior to January, 2014 lacked
credibility. Also of minimal value was the testimony of Appellant’s
mother regarding her two sisters, who lived with Appellant at the
family home at the time of the incident, one of which, Trudy
Tolliferreo required a loud oxygen machine every day. Tolliferreo,
who was elderly and infirm, by way of stipulation, testified that
she didn’t hear anything or see the Complainant when the incident
reportedly occurred.
In addition to the Complainant’s credibility which was not undercut
by the defense presentation, there was Appellant’s attempt to
elude police by hiding in a crawl space under his basement steps.
Such attempts at concealment portrays [sic] his consciousness of
guilt. The court’s verdict is not contrary to, nor is it against, the
weight of the evidence and [shocks no one’s conscience]. No relief
is warranted.
Trial Court Opinion, 7/18/19, at 3-4 (references to notes of testimony and
some capitalization omitted).
Based on our review of the record, we do not discern any abuse of
discretion on the part of the trial court in rejecting Appellant’s weight of the
evidence claim. Therefore, we shall not disturb it.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2020
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